Santiago v Rusciano & Son, Inc.

Santiago v Rusciano & Son, Inc. 2012 NY Slip Op 01360 Decided on February 23, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 23, 2012
Mazzarelli, J.P., Catterson, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.
6888 13711/06

[*1]Angel L. Santiago, Plaintiff-Appellant,

v

Rusciano & Son, Inc., et al., Defendants-Respondents.




David P. Kownacki, P.C., New York (David P. Kownacki of
counsel), for appellant.
The Law Offices of Edward M. Eustace, White Plains (Heath A.
Bender of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about January 21, 2011, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action, and granted defendants' cross motion (collectively, Owners) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to deny the cross motion as to the §§ 240(1) and 241(6) causes of action, and to grant plaintiff's motion, and otherwise affirmed, without costs.

Plaintiff was injured when, while boarding up windows to make the subject premises uninhabitable and to protect it from vandalism in anticipation of demolition, he fell several feet from a ladder. Plaintiff's accident fell within the purview of section 240(1), since the ladder supplied to plaintiff slipped out from underneath him and did not offer proper protection (see Kijak v 330 Madison Ave. Corp., 251 AD2d 152, 153 [1998]; see also Velasco v Green-Wood Cemetery, 8 AD3d 88, 89 [2004]). Moreover, plaintiff was "altering" the premises within the meaning of Labor Law § 240(1). He was engaged in activities designed to prepare and secure the premises' windows for demolition, thereby "making a significant physical change to the configuration or composition of the building" (Joblon v Solow, 91 NY2d 457, 465 [1998]; see Belding v Verizon N.Y., Inc., 14 NY3d 751, 752 [2010]).

The Labor Law § 241(6) cause of action was improperly dismissed. Plaintiff was performing work on the premises as it was being prepared for demolition.

Plaintiff's Labor Law § 200 claim was properly dismissed. The accident did not arise from a dangerous condition of the
premises and the Owners did not direct or control plaintiff's work (see Campuzano v Board of Educ. of City of N.Y., 54 AD3d 268, 269 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 23, 2012

CLERK